This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Daniel Frank Ostrander, petitioner,
Shannon Marie Ostrander, n/k/a Shannon Marie Fragmin,
St. Louis County District Court
File No. 69-F0-02-300185
James Perunovich, Law Offices of James Perunovich, P.F.,
Kent Carlson, Legal Aid Service of Northeast Minnesota, 820 North Ninth Street, Suite 150, Virginia, MN 55792 (for appellant)
Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Minge, Judge.
Appellant-mother challenges the district court’s modification of joint physical custody to give respondent-father sole physical custody of the parties’ three children. Because the district court did not clearly err in finding that mother’s out-of-state move constituted a change in circumstances, that modification was in the children’s best interests, and that the children were integrated into father’s home with mother’s consent, we affirm.
The parties, appellant Shannon Ostrander (n/k/a Shannon Fragmin), the mother, and respondent Daniel Ostrander, the father, married and had three children together, divorced, and remarried in 1997. Their children were born in 1990, 1992 and 1995. The family lived in Nashwauk and the children attended the Nashwauk-Keewatin public schools. The parties separated in 2001.
residency changed several times during the period between 2001 and June
2004. She spent the summer of 2001 in
parties’ second marriage was dissolved on July 3, 2002. The dissolution judgment provided for joint
physical and joint legal custody with the children’s residence shifting between
the parties every four days. At the time the parties agreed to joint custody,
father continued to live in Nashwauk and mother lived in
June 2003, mother and her new husband returned to
September 2004, when mother had been living in
Just prior to the hearing, the mother requested that the children testify in court or in camera regarding their preferences about physical custody. The district court denied that request. The district court determined that the mother’s earlier moves to West Virginia constituted a change in circumstances, that a modification of the joint physical custody arrangement was in the best interests of the children, and that as a result of the children’s changed residential patterns, they had been integrated into father’s household with mother’s consent. Mother appeals.
first issue is whether the district court abused its discretion by modifying
custody. “In custody determinations,
review is limited to whether the trial court abused its discretion by making
findings unsupported by the evidence or improperly applying the law.” Lenz v.
Lenz, 430 N.W.2d 168, 169 (
support a modification of custody,
A. Change in Circumstances
we must determine whether the district court clearly erred when it determined
that there had been a change in circumstances since the time of the dissolution
judgment and decree. “A change in
circumstances must be significant and must have occurred since the original
custody order.” Geibe v. Geibe, 571 N.W.2d 774, 778 (
the judicially approved custody agreement gave the parties joint physical custody. Joint physical custody “means that the
routine daily care and control and the residence of the child is structured
between the parties.”
the circumstances changed between the time that the dissolution judgment was
entered and the time father made his modification motion. The district court specifically found “a
change in circumstances in the family dynamic as [mother] has not resided in [
B. Best Interests of the Children
we must consider whether the record supports the district court’s determination
that modification was in the best interests of the children. “In addition to the substantial change in circumstances,
the modification must be necessary to serve the children’s best
interests.” Gustafson v. Gustafson, 376 N.W.2d 290, 293 (
Here, after observing that both parents loved the children and could meet their basic needs, the district court nevertheless determined that modification was in the children’s best interests. Noting that the alternate-weeks schedule worked in the past, the district court was concerned that, as the children were accustomed to living with father during the school year, returning to a schedule where they would alternate residences every week would be unnecessarily disruptive to their lives. Moreover, the district court recognized that the children have friendships in Nashwauk and have not attended any other school, and found that the instability in mother’s new marital relationship and “possible friction” between the children and mother’s new husband meant mother’s custody was not in the children’s best interests. Finally, the district court found that father had been the primary caretaker, that the children were succeeding in school while in father’s care, that the children experienced a stable household while living with father, and that the permanence of the father’s home was preferable to mother’s frequent moves. Based on all the foregoing considerations, the district court found it to be in the children’s best interests for father to have sole physical custody.
The legislature intended “to impart a measure of stability to custody determinations” by requiring the court to consider the children’s best interests, in addition to modification requirements. Gunderson, 336 N.W.2d at 548. Here, the district court placed a high value on keeping the children in the most stable environment, while also acknowledging that the children wanted relationships with both parents. The court’s decision that it was in the children’s best interests to modify custody is supported by evidence in the record and was not an abuse of discretion.
we must determine whether the district court properly found that modification
was appropriate because the children had been integrated into father’s home
with mother’s consent. See Minn. Stat. § 518.18, subd.
(d)(iii). “The consent requirement has a
narrow purpose and should be viewed in that context.” Gibson
v. Gibson, 471 N.W.2d 384, 386 (
Whether a child has been integrated is a fact-specific inquiry. See Gibson, 471 N.W.2d at 386 (finding no integration where the child resided with father for 17 months because mother was financially unable to care for the child, where the arrangement was expected to be temporary); Peterson v. Peterson, 365 N.W.2d 315, 318 (Minn. App. 1985) (finding no integration where the child lived with the father for only two of the nine years since dissolution, and where the child abruptly left the father’s home after a violent confrontation with the father’s new wife), review denied (Minn. June 14, 1985); Downey v. Zwigart, 378 N.W.2d 639, 642 (Minn. App. 1985) (finding preliminary showing of integration where five-year-old child lived with mother for all but 7 months, and had developed a close relationship with his half-sister).
Here, the parties agreed to let the children reside with father during the school year, while mother would have the children in the summer. This arrangement continued for two years. During the school year, mother regularly communicated with the children and visited at Christmas. However, father was charged with their daily care and supervision for most of the year. Given the mutually agreed-to custody arrangement, it is only natural that the children made strong ties to the Nashwauk community, particularly through friends at school and extracurricular activities. Under the circumstances, the district court did not clearly err in determining that the children were integrated into father’s home with mother’s consent.
we note that for years the parties successfully arranged their joint physical
parenting time by mutual agreement. While
concluding that on the facts in this case the district court did not abuse its
discretion in determining that the statutory requirements for modification were
met, we do not suggest the evidence would preclude the contrary result. Further, we caution that courts use care in
relying on mutually agreed-to modifications in the residence of children as a
basis for changing physical custody so as to not create an undo risk that mere
cooperation by one parent exposes that parent to the risk of losing
custody. The move by mother to
second issue is whether the district court abused its discretion by not
interviewing the children to ascertain their custody preferences. The district court may interview a child to
ascertain a child’s reasonable custody preference, as provided by Minn. Stat. §
518.166 (2004). Yet, this is not the
only way to determine the child’s preference, and the decision whether to
interview the child is a discretionary choice for the district court. Madgett
v. Madgett, 360 N.W.2d 411, 413 (
Mother moved the district court at the evidentiary hearing to either interview the children in camera or to have the children testify as to their custody preferences. The children range in age from 11 to 15. However, we note that eight months elapsed from the first hearing on father’s modification motion to the evidentiary hearing, yet mother waited to make her motion until the day of the hearing. No reason was given for this delay. Under the circumstances, we conclude that the district court did not abuse its discretion in denying mother’s motion to interview the children.